I personally despise the label “activist judge” and wish it would be struck from our public discourse. While definitions vary, it seems very obvious to me that “activist judge” means “a judge who I disagree with.” This position assumes, of course, that there is only one legitimate way of interpreting the Constitution. Does this mean that all dissenting opinions are “activist”? Has anyone who has used the phrase actually thought through what they mean? Of course, the phrase is usually preceded by the label “liberal,” which brings me to the topic of this post.
The recent decisions by Justice Tauro of the Massachusetts District Court, which struck down part of the Defense of Marriage Act as unconstitutional, certainly seem to have upset the Family Research Council. On Thursday, Tony Perkins, the president of the FRC, sent out a fundraising e-mail, in which he decried the “activist federal judge in Massachusetts” and the liberals in Congress who are moving to repeal DOMA. (The second part was news to me; President Obama promised during the campaign to repeal the law…and we still have DOMA).
I suppose the FRC has many reasons to be upset; it seems that there are a lot of activist judges out there who reject the definition of marriage that social conservatives are so attached to. (Though, when you consider the divorce rates in the “Bible Belt,” maybe not too attached). In 2003, the Supreme Court struck down all anti-sodomy laws as unconstitutional in Lawrence vs. Texas. In November 2003, the Massachusetts Supreme Court ordered the state to begin allowing gay couples to marry within 180 days. In May 2008, the California Supreme Court struck down the state’s ban on gay marriages. In October 2008, the Connecticut Supreme Court ordered the state to begin performing gay marriages. In April 2009, the Iowa Supreme Court struck down a ban on gay marriage. In October 2009, a Texas judge ruled the state’s ban on gay marriage to be unconstitutional. (In addition, Vermont, New Hampshire, Maine, and Washington D.C. legalized gay marriage through legislative action, though this was overturned by a ballot referendum in Maine).
That does sound like a lot of “liberal” activism. But who appointed these “activist” judges?
Well, Justice Tauro was nominated by President Nixon in 1972; he is the longest-serving active judge appointed by Nixon. The Massachusetts Supreme Court’s decision was written by Chief Justice Margaret Marshall. She had been nominated to the Court by Governor Weld and was made Chief Justice by Governor Cellucci. In fact, of the four justices in the majority, only one was a Democratic appointee. In the California case, also a 4-3 split, only one of the majority was a Democratic appointee. In both cases, the six of the seven justices had been nominated by Republicans.
The Connecticut case was also a 4-3 split. All four of the majority were Republican appointees; the sole Democrat on the Court actually ruled against gay marriage. The Iowa decision was unanimous and, while five of the seven justices were appointed by Democratic governors, the Chief Justice and the Justice that wrote the decision had both been appointed by Republicans. And in the Supreme Court’s Lawrence vs. Texas decision, which was decided 6-3, 4 of the majority were Republican appointees, with Justice Kennedy, a Reagan appointee, writing the decision.
Those Republicans really seem fond of appointing activist judges. Even worse, liberal activist judges.
And it’s not over. The District Court case in California concerning the constitutionality of Proposition 8, which banned gay marriage in California, is almost over; the closing arguments were heard a month ago. The judge, Vaughn Walker, was nominated by George H. W. Bush and is widely assumed to rule that Proposition 8 is unconstitutional.
One of the charges often leveled at “activist judges” is that they are legislating from the bench: their decisions are not based on the Constitution. Though, when it comes to marriage, the Constitution is rather silent; it doesn’t say anything about anyone having a right to marry. So is it activist judging to say that straight couples can marry? And if the only arguments against gay marriage are based on blatantly flouting the Establishment Clause, why shouldn’t we fully enforce the Equal Protection Clause?
Too often we allow labels to divide us. For most of our history it was race and gender. Now we’ve added sexual orientation to the list. I for one looking forward to a time when only one label matters for which rights the rest of us decide our fellows can also share: American citizen.